Sumina Rani A. Thoppil v. Kerala Public Service Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** ## **MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933** **WP(C).No. 1800 of 2010(Y)** **--------------------------------------** **PETITIONER(S):** - **------------------------** **SUMINA RANI A. THOPPIL VEEDU, VADAKKEVILA P.O, KOLLAM-10** **BY ADV. SRI.M.K.PRADEEPKUMAR** **RESPONDENT(S):** **---------------------------** **1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY PATTOM, THIRUVANANTHAPURAM-4** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS SANTHI NAGAR, THIRUVANANTHAPURAM-1.** **3. THE STATE OF KERALA, REPRESENTED BY ITS EDUCATION SECRETARY, DEPARTMENT OF EDUCATION SECRETARIATE, THIRUVAVANANTHAPURAM.** **R1 BY ADV.SRI.P.C.SASIDHARAN,SC R2 & R3 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2011,ALONG WITH WPC NO. 34344 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.1800/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE RANKED LIST OF HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) HINDI IN THE KERALA HIGHER SECONDARY EDUCATION DEPARTMENT PUBLISHED BY KERALA PUBLIC SERVICE COMMISSION DATED 17/11/2008.** - **P2 COPY OF THE APPOINTMENT CHART PUBLISHED BY PUBLIC SERVICE COMMISSION DATED 27/5/2009.** - **P3 COPY OF THE LETTER OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 22/04/2009.** - **P4 COPY OF THE CANDIDATES TO BE ADVISED BY THE PSC IN CONTINUATIONS OF EXT.P2 APPOINTMENT CHART, AS DESCRIBED IN EXT.P3 AND NOW ABOUT TO REPORT.** - **P5 COPY OF THE SUBSEQUENT APPOINTMENT CHART OF THE PSC DATED 7/10/09.** - **P6 COPY OF THE SUBSEQUENT APPOINTMENT CHART OF THE PSC DATED 16/11/09.** - **P7 COPY OF THE RELEVANT PAGES OF SHORT LIST OF CANDIDATES PUBLISHED BY THE PSC DATED 26/6/2007.** - **P8 COPY OF THE APPLICATION AND THE INFORMATIONS FURNISHED UNDER RTI, ACT BY THE PSC UNDER THE LETTER NO.I.D.S(3) 12574/09/GOVI DATED 25/05/2009.** - **P9 COPY OF THE RELEVANT PAGE OF THE NOTIFICATION QUOTED AS NOTE 3.** **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** **T.R. RAMACHANDRAN NAIR, J. ------------------------------------------W.P.(C) Nos.1800 & 34344 OF 2010 -------------------------------------------Dated this the 4[th] day of July, 2011.** ## **J U D G M E N T** These two writ petitions are filed by the same petitioner. In W.P.(C) No.1800/2010, the main prayer is for a direction to the Public Service Commission to expand the ranked list published by including adequate number of candidates; by reckoning the vacancy position as 116. In W.P.(C)No.34344/2010, the challenge is against the method by which the Non Joining Duty (NJD for short) vacancies were compensated by the Commission. 2. The ranked list in question is in respect of Higher Secondary School Teacher (Junior)(Hindi). The notification was of the year 2005 and after the process of selection was completed, the ranked list came into force on 17.11.2008 (Ext.P1). According to the petitioner, 116 vacancies were earmarked for direct recruitment which were reported by the Higher Secondary Education Department. Initially 73 candidates have been advised from Ext.P1 ranked list. It is contended that **W.P.(C) Nos.1800 & 34344/2010** **2** even though actually 116 posts were earmarked for appointment by direct recruitment, the total number of HSST (Junior) vacancies were limited to 73 by Ext.P3 communication addressed to the Public Service Commission by the Director of Higher Secondary Education. This was in the light of a later development; in that 49 posts of HSST (Jr.) Hindi have been upgraded as HSST (Senior) based on the increase in the pupils strength. It is also the case of the petitioner that if all the circumstances are considered, the Public Service Commission ought to have included 117 candidates in the main list instead of 95. The ranked list was in operation for a period of three years. But, while advising the 96 candidate, the main list got exhausted. The petitioner was included as Rank No.6 of the supplementary list as a Muslim reservation candidate. 3. In W.P.(C) No.34344/2010, the petitioner alleges that even though her turn was 98[th] , if one more candidate was there in the main list, the petitioner would have been advised as 116[th] candidate for appointment. The allegation raised in this writ petition is that the unscientific way by which the NJD vacancies **W.P.(C) Nos.1800 & 34344/2010** **3** are acted upon has resulted in the main list getting exhausted. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Public Service Commission and the learned Government Pleader. 5. Learned counsel for the petitioner vehemently submitted that in the light of the decision of a Full Bench of this Court in _**Ravidas** vs._ _**Public Service Commission**_ (2009 (2) KLT 295) (F.B), three times of number of vacancies reported should have been the criteria for preparing the main list and if that be so, even going by the affidavit filed by the Commission, 39 vacancies were reported at the time of preparation of short list in 2005 and 117 candidates ought to have been included in the main list and the Commission has illegally limited the same to 95. 6. My attention was invited to the decision of the Full Bench in _Ravidas's case_ (supra) to contend that the principle laid down therein is to include candidates thrice in number of vacancies reported. Learned counsel for the petitioner submitted that the stand taken by the Commission that 39 vacancies were alone reported at the time of preparation of short list and therefore, the **W.P.(C) Nos.1800 & 34344/2010** **4** Commission was right in including 286 candidates in the main list and the supplementary list together is not justifiable since the ranked list is in operation for a period of three years and the Commission ought to have considered the anticipatory vacancies also. It is pointed out that it is a hard case as far as the petitioner is concerned since if one more candidate was there in the main list, the petitioner would have been appointed. 7. The details given in the affidavit of the Public Service Commission show that the short list was published on 26.06.2007 and the ranked list was later published on 17.11.2008. It is contended that the Writ Petition (C) No.1800/2010 was filed belatedly by the petitioner on 19.01.2010. It is submitted that the relief will have to be declined on the ground of delay and latches of the petitioner. Reliance is placed on various decisions of the Apex Court and this Court in that context. 8. With regard to the details of the vacancies reported to the Public Service Commission, in paragraph 3, it is averred that prior to the finalization of the above short list on 26.06.2007, only 39 vacancies had been reported to the PSC, consisting of 22 **W.P.(C) Nos.1800 & 34344/2010** **5** fresh vacancies and 17 NJD vacancies. Based on these reported vacancies, the short list was prepared by including therein 286 candidates, consisting of 95 candidates in its main list and 191 candidates in its supplementary lists. Thus the above short list consisted of more than 7.33 times the aforementioned reported vacancies and its main list consisted of more than 2.43 times the aforementioned reported vacancies. It is also pointed out that many of the vacancies were filled up from the previous rank list which was operated upto July 2005. Therefore, the Commission had expected a much less number of vacancies. 9. With regard to the contention by the petitioner that 116 vacancies were reported, it is explained in the affidavit that after the reporting of 39 vacancies prior to the finalisation of the short list, various other vacancies were substantially reduced as per the communication issued to the PSC by the appointing authority. Altogether 79 vacancies have been reported till the date of filing of the affidavit and out of the above 79 vacancies, 78 candidates have been duly advised from the ranked list and 1 vacancy has been set apart for physically handicapped candidate. The **W.P.(C) Nos.1800 & 34344/2010** **6** petitioner is included as rank No.6 in the Muslim supplementary list of the ranked list. The last ranking candidate advised in the open competition turn is the candidate with rank No.66 of the main list. The last candidate advised in the Muslim reservation turn is the candidate with rank No.95 in the main list. The details of candidates advised in other communities have been mentioned in the same paragraph itself. They are unnecessary for considering the claim of the petitioner. 10. It is evident from the decision of the Full Bench in _**Ravidas** vs._ _**Public Service Commission**_ (2009 (2) KLT 295) (F.B) that it is not the law that all the probable vacancies which may arise for a period of three years from the date of publication of the ranked list should have been anticipated by the Commission. It may depend upon various factors including the number of candidates appointed from the previous list, the vacancies reported thereafter and the vacancies reasonably expected to be reported. 11. Herein, evidently, the Commission has pointed out that only 39 vacancies have been reported to them at the time of **W.P.(C) Nos.1800 & 34344/2010** **7** preparation of the short list. But a controversy has arisen whether the number of candidates included in the supplementary list could be reckoned for considering the way in which the Commission acted in finalising the lists. 12. Learned Standing Counsel for the Commission relied upon a decision of a learned Single Judge of this Court in W.P.(C) No.24430/2008 wherein it was held that the petitioners cannot be heard to contend that the main list alone should contain more than twice or thrice the number of reported vacancies. Therein, in paragraph 7, it was held as follows: “.....Admittedly, Ext.P4 short list contained the names of 70 candidates and Ext.P5 short list contained the names of 94 candidates. The petitioners cannot be heard to contend that the main list alone should contain more than twice or thrice the number of reported vacancies. Indisputably, the said short lists contained much more than thrice the number of reported vacancies in the said categories. It is relevant to note that in Ext.P9 rank list of HSST names of 58 candidates are included and in Ext.P13 rank list of HSST(Jr.) names of 70 candidates are included. In fact, the main lists of Ext.P9 and P13 rank lists contain 22 and 31 candidates respectively. In that context, the contention of the Commission is that prior to the finalisation of Exts.P4 and P5 short lists no **W.P.(C) Nos.1800 & 34344/2010** **8** vacancies of HSST were reported and only 8 vacancies (NJD) of HSST (Jr.) were reported.....”. 13. Finally, in paragraph 8, it was held that even going by the decision of the Full Bench, the Commission cannot be compelled to prepare and publish a ranked list large enough to fill up all the vacancies occurring during the life period of such rank list. Herein also, it can be seen that 286 candidates have been included by taking the main list and supplementary list together. At that point of time, 39 vacancies alone have been reported. I do not find any reason to direct the PSC to expand the rank list as demanded by the petitioner as no legal infirmity could be attached to the process of publishing the lists concerned. 14. In W.P.(C) No.34344/2010, what is alleged by the petitioner is that the Non Joining Duty vacancies were not filled up in a proper manner by the Commission. Evidently, filling up of NJD vacancies or any other new vacancies will depend upon the rotation (appointment) chart. There is no allegation that the rotation chart has been violated at any point of time. Even though the learned counsel for the petitioner submitted that for advising candidates in respect of NJD vacancies, some of the **W.P.(C) Nos.1800 & 34344/2010** **9** candidates from the supplementary list also could have been considered, I do not find any merit in such a contention. Issuance of advice memo is in tune with Rules 14 to 17 of Part I K.S.&S.S.R. At a particular point of time, 20 vacancies are taken as a unit in a cycle and then the rotation chart is acted upon. The operation of the chart is a continuing process and based on the appointments made during the previous occasion, the main rotation etc. will have to be found out and in that manner, the candidates are being advised. Therefore, it depends upon various factors. There is no allegation that overlooking the claim of the petitioner's community, anybody has been appointed. It is also not the case of the petitioner that any other candidates have been benefited unduly. It is also not the case that open category candidates if any appointed were not eligible going by their turn. If that be so, I do not find any reason to interfere with the manner in which NJD vacancies were distributed by the Commission for advising candidates. 15. What is further argued by the learned counsel for the petitioner is that there is violation of the principles of natural **W.P.(C) Nos.1800 & 34344/2010** **10** justice i.e. by the action on the part of certain candidates who were included in the main list in not responding to the advice of the Commission and the consequent alteration of the vacancies as NJD vacancies, the fate of the candidates like the petitioner is really affected. It is pointed out that persons like the petitioner are in the receiving end merely because of the non response by certain candidates to the advice memos issued. 16. Evidently, there is no violation of the principles of natural justice. It is a case where the vacancies are being filled up from time to time based on the rotation chart. It may so happen that certain candidates who were included in the main list may not be interested to accept the appointment pursuant to the advice memo issued because of various factors including the fact that they have already obtained an appointment from some other ranked list or by any other institution of their choice. Therefore, the Commission has no control over such matters. Only when candidates are advised and when they are not responding to the appointment order issued by the appointing authority, the vacancy will become a Non Joining Duty one and then the **W.P.(C) Nos.1800 & 34344/2010** **11** appointing authority will have to report it to the Public Service Commission. The circumstances may lead to an advantage for another candidate or hardship to a different candidate as he may have to wait further but that doesn't mean that there is violation of natural justice in the filling up of vacancies. The only way in which a vacancy can be treated as a NJD vacancy, going by the practice followed by the Commission and by the relevant Rules, is when a candidate who is advised and appointed does not report for duty. The Commission cannot anticipate such factors. 17. In that view of the matter, I do not find any merit in the submission that there is real violation of the principles of natural justice in filling up of Non Joining Duty vacancies. Learned counsel for the petitioner vehemently contended that the way in which the notifications are being issued from time to time and the manner in which the appointments are being made really put the persons like the petitioner in trouble. Evidently, the Commission can only act upon the requisitions made by the appointing authority and the number of vacancies reported may change from time to time. **W.P.(C) Nos.1800 & 34344/2010** **12** In that view of the matter, I do not find any merit in the contentions of the petitioner and therefore, these writ petitions are dismissed. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp